THE STATE COURT OF YAP
IN THE
TRIAL DIVISION
Cite as State of Yap v. Ruewuyoch, (Yap St. 1996)
 

THE STATE OF YAP
Plaintiff,

vs.

FLORIAN RUEWUYOCH
Defendant

Criminal Case No. 1994-117
Criminal Case No. 1995-217

ORDER AND MEMORANDUM ON ORDER
     The court has received and considered Defendant's Motion to Dismiss dated March 8, 1996; the State's Response to Defendant's Motion to Dismiss dated March 26, 1996; Reply to State Response and Memorandum of Points and Authorities dated April 5th, 1996; and State's Sur-reply to Defendant's Motion to Dismiss dated May 3, 1996. On May 16, 1996, the court denied the Defendant's motion orally from the bench. For the reasons set out in the accompanying memorandum,


IT IS HEREBY ORDERED denying the Defendant's Motion to Dismiss.


DONE THIS 19th DAY OF JULY, 1996.
 
                                                       /s/
                              Constantine Yinug, Chief Justice

Received and filed:
Date: 7-19/96

By: /s/
Clerk of Yap State Court


MEMORANDUM
     The Defendant raises two issues in his motion. He first argues that the Information filed on September 26, 1995, in Criminal Case 1995-217 (hereafter "the 217 case") should be dismissed on the basis of intrafamilial privilege. Second, he contends that the Information should be dismissed based on double jeopardy concerns. The court considers each contention in turn.

     The basis for Defendant's contention that intrafamilial privilege dictate's the dismissal of the Information in the 217 case is that Angela Kabeppin has indicated via an affidavit attached to the Motion to Dismiss that she does not want to testify against the Defendant, who is a relative of hers. The Information contains three counts: Count I alleges a violation of 11 YSC 401, disturbing the peace; Count II a violaflon of 11 YSC 808, illegal possession and consumption of alcoholic beverages; and Count III a violation of 11 YSC 213, threats. Angela Kabeppin is the victim with respect to Count III. At pages ten and eleven of its Response, the State avows that it will not compel Kabappin to testify, as there were other witnesses present at the time of the events that are the subject of the Information. Since the State will not rely on the testimony of Kabappin, the court does not reach the issue whether Kabappin's claim of a testimonial privilege pursuant to Article II, Section 6, of the Yap State Constitution requires the dismissal of the Information.

     The second issue raised by the Defendant is that the court should dismiss the Information in the 217 case on the basis of double jeopardy, because the alleged acts which are the basis for the Information also serve as the basis for the State's previously filed Petition for Revocation of Probation dated June 5, 1995, which was filed in Criminal Case No. 1994-117 (hereafter "the 117 case"), a prior criminal matter in which Florian Ruewuyoch was the defendant. Some procedural history is relevant to this point.

     The Information was filed in the 117 case on May 17th, 1994, and alleges four counts: Count 1, aggravated assault; Count II, assault with a dangerous weapon; Count III illegal possession and consumption of alcoholic beverages; and Count IV, malicious mischief. The Defendant subsequently pled guilty on July 19th, 1994, and a Judgment of Conviction was entered on that date in which the court placed the Defendant on probation for one year, with the probationary period o extend from July 19th, 1994, to July-19th 1995.  Conditions of probation were that the Defendant was not to possess or consume alcoholic beverages, :and that he was to obey all laws to which he was subject Then; on June 5th 1995, or 44 days before the probationary period was to expire, the State filed a Petition for Revocation of Probation in the 117 case in which the State alleged that on June 3, 1995, a Saturday, the Defendant violated the terms of his probation in that he consumed alcohol and committed the crimes of disturbing the peace and making threats. Defendant was apparently arrested for these offenses, as the file notation in the 117 case for a hearing on June 5, 1995, indicates that Defendant was released from jail to his home. Nine days later, on June I4, 1995, the court held the next hearing, and the file notation for that hearing shows under the section "What occurred" the handwritten notation "not guilty." Also, the very brief tape recording for that hearing uses the words "arraignment" and "not guilty." On June 28th, the next hearing was held, and the file notation for that hearing under the section titled "What occurred" has the handwritten notation "waived info, rights." However, the tape recording for that hearing again is very brief, and records the State asking for a continuance so that defense counsel could get a copy of "the petition". No reference is made to any information. The next hearing in the 117 case was on July 21st, 1995, and shows that the court granted a continuance. On September 26, 1995, the State filed the Information based on the June 3rd actions that were the basis for the Petition for Revocation of Probation. This is the initial filing in the 217 case. Defendant made his initial appearance in the 217 case on October 3, 1995, and an arraignment was set for October 11, 1995, at which Defendant pled not guilty. The cases have been consolidated for subsequent proceedings.

     With the foregoing procedural history in mind, the Defendant's argument is that the proceedings which occurred immediately after the filing the revocation petition, which was filed on June 5, 1995, constituted a prosecution, and cites to a Yap State trial level case, State v. Waath Kenmed, Criminal Case No. 1991-185. In Waath, the State did not oppose the motion to dismiss, and the court did not rule on the merits of the Defendant's motion. However, the issue raised in Waath involved two different prosecutions.  In this case, at issue are a probation revocation proceeding and a prosecution, and this is the deciding difference. Probation is a not a right and the revocation of probation should not be considered additional punishment; a court may revoke probation if is reasonably, satisfied that the terms of the probation were violated. See FSM v. Phillip, 5 FSM Intrm. 298 (Kos. 1992), a case with facts similar to the factual allegations at issue herein, in that in Phillip the defendant violated the terms of his probation by committing two separate criminal acts.

     Some confusion may have resulted in this case from mixing the use of pre- and post-conviction terminology. As previously noted, at the June 14th, 1995, hearing in the 117 case, the words "arraignment" and "not guilty" appear on the tape, although no reference is made to any information at that hearing. At the next hearing on June 28th, the tape has the State requesting a continuance to allow defense counsel to obtain a copy of the "petition" -- i.e., the probation revocation petition. This mixing of terminology does not serve to change the essentially different nature of the two proceedings, and Defendant was not placed in jeopardy twice for the same offense. For these reasons, the Defendant's Motion to Dismiss on the basis of double jeopardy is denied.

     The State has urged that the court should not reach the substance of the Defendant's arguments presented in the Motion to Dismiss on the basis that Defendant has failed to file a memorandum of points and authorities which cites authorities, and has thereby waived the arguments not so supported. In advancing its waiver argument, the State cites McCaffrey v. FSM Supreme Court, 6 FSM Intrm. 279 (App. 1993). Unlike the instant case, which is criminal in nature, McCaffrey construes a civil appellate rule, and the court noted that the appellant cited "no legal authority whatsoever for any of his constitutional assignments of error." 6 FSM at 283. At issue here is Rule 47(b) of the Rules of Criminal Procedure for the Trial Division of the State Court of Yap, which provides in part that "[e]very motion shall be accompanied by a memorandum or points and authorities which discusses the issues presented by the motion." Rule 47(d) provides for sanctions for failure to file a memorandum, and is as follows:

(d) Sanctions. Failure of attorney or trial counselor for a party to file the required memorandum of points and authorities may, in the discretion of the Court, subject the defaulting counsel to the imposition of sanctions, including but not limited to refusal by the Court to hear counsel at the hearing, or postponement of the hearing until the memorandum is prepared and filed.

Criminal Rule 47(d) does not by its tern s:.provide for the sanction of waiver, and this is a telling point, because Rule 7(C) of the Rules of Civil Procedure for the State Court of Yap, which is the civil counterpart of Criminal Rule, 47(d), has a specific wager provision.  Civil Rule 7(C) is as follows:

(C) Sanctions.  Failure of attorney or trial counselor for a party to file the required memorandum of points and authorities may, in the discretion of the court, subject the defaulting counsel to the imposition of sanctions, including refusal by the court to hear counsel at the hearing, postponement of the hearing until the memorandum is prepared and filed, waiver by the moving party of the motion, or consent to the granting of the motion if counsel for the opposing party fails to file the memorandum of points and authorities.

Emphasis added. In light of the fact that Criminal Rule, 47(d) does not provide for a waiver sanction in a criminal case where counsel has not filed a memorandum of points and authorities, the court will not entertain imposition of such a sanction.

     Although the sanction of waiver is not appropriate in a criminal case, Rule 47(d) does provide for the sanctions of refusal by the court to hear counsel and postponement of a hearing until such time as the memorandum is filed. A brief discussion of when such a sanction may be imposed is appropriate.

     A cogently argued, effectively organized motion will contain a specific section entitled Memorandum of Points and Authorities per the requirement of Criminal Rule 47(b). However, what constitutes "[a discussion of] the issues presented by the motion", which is how Rule 47(b) effectively defines "memorandum of points and authorities", is a concept subject to a certain latitude of interpretation. Including somewhere in a motion the. Beading "Memorandum of Points and Authorities" does not mean that the movant automatically accomplishes a discussion of issues, and by the same token the absence of the use of the heading does not necessarily mean the nlovant has failed to adequately discuss the matters presented. An emphasis on substance, as opposed to form, is appropriate with respect to interpreting Rule 47(d), and this is especially true given the fact that in Yap, legal resources directed to a specific point are sometimes not readily accessible, and a movant may be obliged to urge general principles as authority, in lieu of, citing to specific, cases:

     Applying the foregoing considerations to Defendant's Motion to Dismiss, Defendant has, not included as part of his motion a memorandum of points and authorities. He does present the issues of intrafamilial privilege and double jeopardy, discusses those issues, albeit in a summary fashion, and includes cites to two trial level state court cases.  He expands on his arguments in his Reply.  This meets the issue discussion requirement of Rule 47(b)

     As a final matter, the State has requested sanctions against defense counsel. The court declines to impose sanctions.

DONE THIS 19th DAY OF JULY, 1996.

/s/
Constantine Yinug, Chief Justice
                                                                                                                                                                                                                                                                                                           
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